Will rising tide of opposition force change in NSA tactics?

Aug. 2, 2013
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Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., leans over the dais to speak with Chris Inglis, left, deputy director of the National Security Agency, after he and other national security officials testified about the NSA's surveillance programs on July 31. / J. Scott Applewhite, AP

by Kevin Johnson and David Jackson, USA TODAY

by Kevin Johnson and David Jackson, USA TODAY

WASHINGTON - In the weeks since Edward Snowden's unauthorized disclosures about some of the government's most sensitive surveillance programs, the former National Security Agency contractor has found an unlikely ally: Congress.

Lawmakers of all political stripes, some of whom also have expressed outrage at Snowden's actions, are now part of a growing coalition that is challenging the scope and effectiveness of the formerly secret operations for the same reasons that allegedly drove Snowden to disclose them - and for which he is now charged with espionage-related offenses.

The turning political tide, fueled by mounting concern for a controversial program that allows for the collection of tens of millions of Americans' telephone records and more recent disclosures about the tracking of Internet communications, has made the prospect of dramatic change to the government's national security strategy all but inevitable.

"The government is already collecting data on millions of innocent Americans on a daily basis, based on a secret legal interpretation of a statute that does not on its face appear to authorize this type of bulk collection,'' Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., told intelligence officials earlier this week. "What will be next? And when is enough, enough?''

Leahy's remarks, aimed at top officials of the NSA, Justice Department and the Office of the Director of National Intelligence, are only the latest of the harsh critiques being leveled at programs that intelligence officials claim are among the most valuable parts of U.S. counterterrorism policy. Similar concerns have been expressed beyond U.S. borders, where European leaders, including German and French authorities, have raised questions in the wake of the surveillance disclosures.

Now, some of the same officials who have staunchly defended the programs, including Deputy Attorney General James Cole and Robert Litt, general counsel for the Office of the Director of National Intelligence, appear resigned to the prospect that Snowden's disclosures - and the unrelenting political debate that has followed - will require substantial change in how the government goes about protecting the country and its allies from new threats.

''We are open to re-evaluating this program in ways that can, perhaps, provide greater confidence and public trust,'' Litt said, referring to the phone collection operation, which was outlined in more detail Wednesday in documents declassified by the government.

Said Cole: "It is worth having a debate over whether there is a better way to do it. â?¦ Our goal is to get out as much information as we can to provide as much transparency as we can on this.''

The officials, whose remarks represent an increasing willingness to compromise, likely will have little choice.

While much of the concern has been focused on the program that collects phone records - but not including the content of calls - questions also have been raised about operations that track the communications of non-U.S. citizens abroad and the government's access to Internet communications.

AIRING CONCERNS

In a clear signal of slipping political support for the surveillance strategy, President Obama called a meeting Thursday with a group of lawmakers representing both sides of the increasingly divisive debate. They included the NSA's most prominent critics - Rep. Ron Wyden, D-Ore.; Rep. James Sensenbrenner, R-Wis.; and Sen. Mark Udall, D-Colo.- and it fiercest supporters - Sen. Dianne Feinstein, D-Calif., and Rep. Mike Rogers, R-Mich., the respective chairs of the Senate and House intelligence committees.

The meeting came only hours after Russia dealt the administration a related setback when it awarded Snowden temporarily asylum. The action allowed him to leave a Moscow airport transit area, where for more than month he has sought protection from deportation to the U.S. to face criminal charges, for an undisclosed location in Russia.

A Quinnipiac University poll released Thursday - but taken before asylum was granted - found that 55% of Americans believed Snowden to be a whistle-blower, not a traitor.

After Thursday's White House meeting, intelligence committee leaders issued a joint statement defending the programs but said they would explore proposals to address worries about them.

"Our meeting with President Obama today ... was productive,'' the officials said in the statement. Though some did not accept recent criticism that the phone record collection operation amounted to a "domestic surveillance program,'' the officials vowed to "work through the August recess on proposals to improve transparency and strengthen privacy protections.''

White House spokesman Jay Carney said Thursday that Obama welcomes the congressional debate over the programs and that the president wants to seek the right balance between the rights of personal privacy and needs of national security.

"Some of what we do to make sure that the United States is protected and that our interests are protected has to, by necessity, be secret," he said. "And there's congressional oversight of these kinds of programs, and that oversight has to, by necessity, be conducted behind closed doors."

Yet lawmakers already are voicing plans to dramatically limit the scope of the phone record collection system; others have called for a reduction in time that the records can be stored, from the current five years to possibly two years; and there is growing support for the creation of a special counsel at the secret Foreign Intelligence Surveillance Court.

The position, as recently outlined by Senior U.S. District Judge James Carr, a former FISC judge, would challenge the government's surveillance requests and guard against possible breaches of personal privacy.

Sen. Richard Blumenthal, D-Conn., said changes to the secret operations of the FISC should go even further. In proposed legislation he is co-sponsoring with Sen. Jeff Merkley, D-Ore., Blumenthal is calling for the attorney general to declassify opinions issued by the secret court that would open the panel to more public scrutiny.

"In appearance, this system is failing in maintaining the trust and credibility of the American people,'' Blumenthal said this week.

Meanwhile, Sensenbrenner, one of the authors of the U.S. Patriot Act, vowed Thursday to introduce proposed legislation to "ensure the dragnet collection of data â?¦ is reined in."

SECURITY VS. PRIVACY BREACH?

Though partially obscured by the initial outrage over Snowden's alleged betrayal, the wave of political opposition has been building for weeks.

In June, Feinstein and Rogers immediately denounced the detailed disclosures of the phone records program and a separate operation that tracks the communications of non-U.S. citizens abroad.

"It's called protecting America,'' Feinstein said, offering an unvarnished defense of the programs while suggesting that Snowden had put national security at risk.

Rogers, meanwhile, said Snowden's action "defies logic.''

"He has taken information that does not belong to him,'' Rogers said. "It belongs to the people of the United States. He has jeopardized our national security.''

In the weeks since, a more nuanced debate as emerged in which some lawmakers, while carefully distancing themselves from Snowden's actions and alleged crimes, have joined in the NSA contractor's contention that the programs represented serious privacy breaches.

"Let me make clear that I do not condone the way these and other highly classified programs were disclosed,'' Leahy said. "We need to hold people accountable for allowing such a massive leak to occur.''

At the same time, however, Leahy said the Snowden leaks offered an opportunity for "a debate that several of us on this (Judiciary) committee have been trying to have for years.''

That discussion and the depth of the growing political divide was revealed on the House floor last week when a proposal to shut down the phone collection program offered by Rep. Justin Amash, R-Mich., and a diverse collection of lawmakers was narrowly defeated by a vote of 217-205.

House Minority Leader Nancy Pelosi, D-Calif., suggested that the House vote will almost certainly not be the last legislative battle waged on the issue.

"I was happy that there was a big vote for the (Amash) amendment,'' Pelosi said earlier this week in a meeting with the USA TODAY Editorial Board. Pelosi said she did not support the proposal because "I don't think we should eliminate the program.''

"I didn't ask one person for a vote ... I was glad it was a big strong vote to send a message,'' she said.

How that message is translated and how quickly, though, is not immediately clear.

"The recent Amash amendment vote shows that the public has had enough with the blanket, warrantless surveillance of its communications,'' said Michelle Richardson, the ACLU's Washington legislative counsel. "Without significant reforms to these programs, the government is going to lose them."

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, characterized the mounting political opposition as "extraordinary.''

"It's hard to account for, except as a consequence of the leaks of classified information,'' Aftergood said. "The root of the concern is the bulk collection of phone and e-mail records.

"That needs to be justified to the public's satisfaction or it needs to be ended.''